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28 Oct 2002 : Column 604—continued

Mr. Cash: Did my right hon. and learned Friend not think that perhaps he was accountable to himself and that he might have acted with a little more restraint?

Mr. Hogg: On the contrary, I acted with great restraint. Not only that, but I dictated the guidelines to the Department that would set out the principles that I would apply. However, that was to perform a role that a judge, not a Minister, should perform.

I have one further point about accountability. A Minister standing at the Dispatch Box, heavily armoured with his brief and understanding the facts, is not accountable to the House. The House does not have the appropriate processes with which to make a Minister accountable, save in Select Committees. The idea that a Minister will be embarrassed or taxed or supervised is simply an illusion.

There is a further point. Even if Parliament could hold a Minister to account, it should not do so in respect of individual sentences in individual cases. It is perfectly proper for Parliament to set out general policy, but wholly improper for Parliament to scrutinise individual sentences imposed on individual defendants, because, of course, Parliament is driven by the tabloid press. Too often, Members of Parliament respond to the lynch-mob mentality of the public. Members of Parliament will never know the exact facts of a particular case, or indeed the sentences imposed in relatively comparable cases.

For all those reasons, I strongly believe that the function is not properly ministerial but judicial.

Simon Hughes: The right hon. and learned Gentleman knows that I share his view. When he was dispensing that type of ministerial justice, did he hold his current view?

Mr. Hogg: Yes.

Simon Hughes: If the right hon. and learned Gentleman held that view, surely he is now at liberty to reveal, in general terms, whether the Government discussed changes to the law that would have allowed judges to replace him as the dispenser of so much rather summary justice.

Mr. Hogg: On the hon. Gentleman's latter point, I do not remember. I was only an Under-Secretary at that stage. However, I have always held the views that I expressed today and I have always expressed them robustly. I never thought that the function was one for Ministers to perform, but I am not a squeamish fellow, as you know, Mr. Deputy Speaker, and I never hesitated to perform the functions entrusted to me—even if I thought they were wrong, as I then did.

I realise that time is running out so I turn briefly to the convention itself. I want to make some general points. It is true that the incorporation into domestic law of the convention has given the judges a legislative function. As a member of the legislature, I understand the objections to that. All in all, however, I am very much in favour of the incorporation of the convention into domestic law. It is wholly right to say that justice delayed is justice denied. If it be right to have recourse to the courts, better by far that people can raise convention-based issues at first instance in the UK courts than have to go to Strasbourg.

Secondly, and rather differently—it is part of the margin of appreciation—it is to the interests of the United Kingdom that the body of jurisprudence that will emerge on the basis of the convention addressing UK issues should actually reflect the views formed at first instance by British trial judges. That is to our interests.

Finally, I believe that the House does not properly defend the interests of the citizen. As the House will remember, my father delivered lectures on and wrote a book about Xthe elective dictatorship". We have surrendered to the Executive the control that we ought to have over policy and over legislation. Party—I look at my hon. Friend the Whip—exercises far too much authority over Members of Parliament.

Mr. Garnier: My right hon. and learned Friend does not even know the name of our Whip.

Mr. Hogg: I certainly do.

We need many more independent Members of Parliament. If we had them, we should not need the convention. However, because we do not perform properly our functions—to defend the citizen—better the convention and judge-made protection than no protection at all.

9.3 pm

Rob Marris (Wolverhampton, South-West): I fear that I may not be as independent as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) would wish.

I welcome the debate and am glad that it was initiated. It is good that we debate the role of Parliament and the judiciary in decision making, as the Opposition have urged us, and that we recall developments in the common law.

I am a non-practising solicitor but unlike many Members who have declared that interest, I do not have a law degree. I took the cheaper route, so I did not have the chance to engage in jurisprudential debates and may have a hazier idea than I should about the origins of the common law.

Mr. George Osborne (Tatton): The hon. Gentleman now has the chance to find out.

Rob Marris: As the hon. Gentleman says, I shall now be able to learn.

Although the debate is welcome, it is somewhat artificial, as has been mentioned, particularly by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), who rightly said that we were signatories to the European convention before its incorporation into United Kingdom law, and that it was therefore a question whether cases went to Strasbourg or were dealt with domestically. In that sense, there has been no change.

There may have been a change—the hon. Member for Beaconsfield (Mr. Grieve) seems to decry this, but he will correct me if I am wrong—in that those who feel that their human rights have been trampled on take the matter to court in the United Kingdom because it is easier to do so. However, that does not seem to be a problem—access to justice is easier for people.

Mr. Grieve: I did not suggest that that was a problem; I said that it had consequences—I hope that the Minister will address them in her reply—and that it appeared that the Minister and the Home Secretary were parting company with the operation of the ECHR and its incorporative Act on some specific issues. I hope that a Government Member will address those points this evening because that is what the debate is all about.

Rob Marris: What the Minister addressed in general terms was the balance that must be struck between, for example, the right of a state to protect itself, which we have done with the anti-terrorism legislation, and the human rights of individuals. If the hon. Gentleman thinks that the issue has not been dealt with fully enough, I am sure that the Minister who is to reply will tackle it further.

The debate highlights the need to discuss mandatory life sentences. They have been mentioned tonight and, no doubt, will be debated again. Some of the drive for the debate comes from that issue. I am uneasy about mandatory life sentences for murderers, because they have led us into problems. The abolition of the death penalty was an historic compromise, but we moved beyond that with the signing of the sixth protocol.

We experienced the same difficulty with the abolition of the death penalty. One practical reason, in contradistinction to the forceful moral arguments, why the death penalty was abolished was that juries would not convict in many cases because the penalty—death—was so draconian. There is a similar situation now, understandably, with survivors of domestic violence. They can be charged with murder because their actions fulfil the letter of the law on murder, but juries will not convict because it would mean a mandatory life sentence for those women, and so difficulties arise. There is a bending of the law on provocation, diminished responsibility and so on, so we need to look again at mandatory life sentences.

The hon. Member for Beaconsfield talks about the limits to be imposed by the House on judges' discretion. One of the things that made me proud to be a solicitor was that, when the iron curtain came down in 1989, the countries in eastern Europe advanced two key demands. One was for parliamentary democracy and the other was for the rule of law, because they did not have an independent judiciary, as we have had for centuries. That is important, but one has to debate the balance between the power of the judiciary and that of the House of Commons as sovereign body.

The hon. Gentleman referred to rights disappearing down the plughole, but I do not recall him giving the House any example of what those rights were. He focused on mandatory life sentences and the Home Secretary's powers of review.

Mr. Grieve: The hon. Gentleman gives a straightforward example. The original intention was that a murderer should serve a life sentence. That is how the public perceived the sentence, even though a person might be freed long before spending the whole of his life in prison. That principle has gone down the plughole. There can be no doubt about that, as the hon. Gentleman will probably agree, but the public and the House have not debated that issue.

Rob Marris: The hon. Gentleman replies eloquently, but I think that the record will show that he used the word Xrights" in the plural, and he simply mentions one right now.

The first few lines of the Opposition motion state:

I must say that the official Opposition have been singularly quiet about what they mean by Xin other respects". We have had references to the Special Immigration Appeals Commission—

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